Take Two #130: Building the Law

07/13/2014

By Kyra-lin Hom

To address an issue from my last column (the Supreme Court decision regarding cell phone searches): No, I don't believe it's right for criminals to get off on technicality. However, as soon as we start administering arbitrary law we start playing God. Our legal system is frustrating, and it doesn't always end up with the good guys riding into the sunset. It is not always 'right,' and it certainly isn't perfect. But it is, at core, stable and reliable – necessary foundations for a nation the size of ours.

I haven't always felt this way. Not by far. It wasn't until I actually started (collegiately) studying law and criminology that I realized our system isn't the broken mess we casually think it is. I still believe our nation would benefit from a rough scrub brush, but I now understand why that isn't practical.

So why isn't it? Because of precedent. As I've said and you've likely heard before, our law is built on a handful of statutes and an unconscionable amount of legal history. Each and every nuance of each and every case and judicial decision ever since our nation's founding is applicable to us today. Given, many decisions have been overruled over the nearly 250 years of our nation's existence (for example, most pre-civil rights civil law decisions), but you get the point. This means we have a uniquely flexible and adaptive legal system – that is if you can slog through all that history.

The downside is that there is no room for case by case rule bending. Maybe in small claims courts, sure (where you often don't even have to have a law degree to be a judge). But not in the high courts and certainly not in the Supreme Court.

Take the case at hand about cell phone searches, Riley v. California. Had the Supreme Court denied Riley's appeal it would now stand that, according to federal law, police could search through, download, and save any data accessible on or via your cell phone as long as they had a legitimate reason to stop you. That includes reasons as light as loitering or having expired tabs on your car. I'm not saying that police would abuse such powers, only that they could have down so (according to federal law) had the Supreme Court decided differently.

I don't have anything more illicit on mine that a few questionable Google searches, but that doesn't mean I want my photo library saved on a police database. (And let's not even get started on the landslide of Fourth Amendment crumbling that that could have initiated. Remember, it's all about precedent.)

So am I happy that a gang-affiliated killer walked away with minimal charges? Of course not. But once Riley's appeal reached the Supreme Court, the issue at hand was, for better or worse, no longer about him but about all of us. The entire nation. And not just right now but every year ahead of us. Precedent.

This might seem like a strange stance for me to take, seeing as I'm studying how to prevent crime and enforce the law. But these kinds of rules have historically helped law enforcement officers be ultimately more effective. When there is a guideline to work within there is less room for error. Take Miranda Rights for example, as everyone with a TV should now be familiar with these. When Miranda Rights were established, police suddenly had pitch black and white guidelines to work within: say the words, call it good, move on. Less room for error. More freedom to work.

No system is perfect. But as I learned the hard way, it's best to at least try and understand its basic underpinnings before you knock it.

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